There was never much doubt how this Supreme Court would decide Chiles v. Salazar, a lawsuit challenging a Colorado law that bars licensed therapists from providing “conversion therapy,” or counseling that seeks to convert LGBTQ+ patients into straight and cisgender people. This Court, which has a 6-3 Republican majority, typically rules in favor of religious conservatives when their interests conflict with those of queer people, even when religious conservatives raise fairly aggressive legal arguments.
In Chiles, moreover, the plaintiffs’ arguments were actually pretty strong. The plaintiff in Chiles is a therapist who wishes to provide conversion therapy to patients hoping to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].” She says she does not physically abuse LGBTQ+ patients or prescribe them any medication; she merely engages in talk therapy with them. And it doesn’t take a law degree to see how a law regulating talk therapy implicates the First Amendment’s free speech protections.
And so, the Court’s vote in Chiles was lopsided, with Democratic Justices Sonia Sotomayor and Elena Kagan joining the majority opinion. Only Justice Ketanji Brown Jackson dissented.
Despite this lopsided vote, Chiles did raise difficult questions under the First Amendment. While the constitutional right to free speech is broad and typically applies to speech that is offensive or even harmful, the law has historically placed some restrictions on what sort of things licensed professionals may say to their patients or clients. A lawyer who tells a client that it is legal to rob banks risks a malpractice suit or worse. A doctor who tells a patient that they can treat their flu by taking arsenic risks being tried for murder.
So, Justice Neil Gorsuch, who wrote the majority opinion, had to devise a rule that invalidates Colorado’s ban on conversion therapy — at least as applied to therapists who do not touch their patients or engage in anything other than talk therapy — while also ensuring that quack doctors and incompetent lawyers aren’t placed above the law.
His opinion suggests that, at least in some cases, a client or patient who receives very bad legal or medical advice must wait until they have actually suffered the consequences of taking that advice before suing the professional who gave them the bad advice for malpractice. That rule may lead to unfortunate, or even tragic, results in some unusual cases. Conversion therapy is rejected by every major medical and mental health organization, because it, in the words of the American Psychological Association, “puts individuals at a significant risk of harm.” After Chiles, some patients may not have any legal recourse against quack therapists until they engage in self-harm — or worse.
But Chiles also likely won’t turn the practice of law or medicine into the Wild West. There are still some safeguards against bad therapeutic practices. And the possibility of a malpractice suit may deter some therapists from using discredited methods.
The First Amendment hates laws that discriminate on the basis of viewpoint
The thrust of Gorsuch’s opinion is that Colorado’s law is unconstitutional, because it engages in “viewpoint discrimination,” and laws that do so are almost always forbidden by the Constitution.
As Gorsuch writes, the law treats therapists differently depending on which views they express about a client’s sexuality or gender. “With respect to sexual orientation,” for example,” Colorado permits a therapist to “affirm a client’s sexual orientation, but prohibits her from speaking in any way that helps a client ‘change’ his sexual attractions or behaviors.”
Discriminating based on viewpoint is just about the worst thing that a state legislature can do if it wants a law to survive a First Amendment challenge, which explains why two of the Court’s three Democrats joined Gorsuch’s opinion. In a separate concurrence, Kagan explains why she and Sotomayor voted against Colorado’s law, and her opinion leans heavily into the very strong rules against viewpoint discrimination.
Such laws, Kagan writes, are an “‘egregious form’ of content-based regulation,” in part because they suggest that the government had an “impermissible motive” when it wrote the law — “regulating speech because of its own ‘hostility’ towards the targeted messages.” For this reason, Kagan writes, laws that engage in viewpoint discrimination of any kind “are the most suspect of all speech regulations.”
That said, the Constitution has historically allowed the government to discriminate against lawyers who express the viewpoint that their client should murder their wife or against doctors who express the viewpoint that cyanide is an effective cure for the common cold. Although Gorsuch’s opinion includes a categorical statement that the First Amendment’s protections “extend to licensed professionals much as they do to everyone else,” he also does describe some circumstances when the government may regulate professional speech.
The government may require professionals to “disclose only factual, noncontroversial information,” so laws requiring doctors to disclose the risks of a particular medical procedure before performing it on a patient should remain constitutional. And Gorsuch also notes that the right to free speech is greatly reduced when the government regulates “speech promoting the sale of contraband because such speech is often bound up with traditional criminal conduct.” Perhaps the Court could also rely on this second exemption in a future case involving a lawyer who tells a client that it is legal to rob banks, because such speech would also be “bound up with traditional criminal conduct.”
Gorsuch also endorses malpractice suits, but only when a plaintiff shows “among other things, that he has suffered an injury caused by the defendant’s breach of the applicable duty of care.” So, a patient who actually takes a doctor or lawyer’s terrible advice and suffers for doing so may still sue that professional for malpractice. A state licensing board might also strip a doctor of their license after they harm a patient. Talk therapists, including those who engage in conversion therapy, should also be liable for malpractice if they cause serious harm to a patient — although, an LGBTQ+ patient who attempts suicide or otherwise suffers because of conversion therapy may find it difficult to prove that their therpist, and not some other source of mental anguish, caused the patient’s mental health to deteriorate.
After Chiles, the government likely has less power to proactively prevent professionals from doing things that may harm a client. Suppose, for example, that a state had barred doctors from telling patients to take the drug ivermectin to treat Covid-19. During the Covid pandemic, many online sources encouraged Covid patients to use this drug, despite the fact that evidence does not suggest that it is an effective treatment.
It is unclear whether such a proactive attempt to stop quack doctors from prescribing bad medicine would survive judicial review under Chiles. After all, a law engages in viewpoint discrimination if it permits doctors to express the viewpoint that ivermectin is an ineffective treatment, but does not allow them to express the opposite opinion.
Still, Chiles does leave many laws regulating health and legal professionals intact. And Kagan is correct that the Constitution casts an extremely skeptical eye on laws that engage in viewpoint discrimination, even when those laws seek to address very real harms.
